More plaintiffs are seeking to include impermissible counts in personal injury claims stemming from motor vehicle accidents against the owner/employer of a driver involved in the accident. Claims of negligent hiring, training, supervision, retention, and entrustment impose no additional liability if ownership of the vehicle and course and scope of the employee driver are admitted. So why challenge these additional counts? It has long been established that a driver’s prior driving record is prejudicial and generally not admissible in a civil jury trial. By including these claims, the Plaintiff may be allowed to parade the employee/driver’s past driving record and argue that he/she should have never been hired and posed a danger to the community. This is done in an attempt to inflame the jury and increase the compensatory damages award. As will be discussed below, if an employer admits that their driver was in the course and scope of his employment at the time of the accident, claims of negligent hiring, training, retention, and supervision are not allowable as a matter of law. Furthermore, Courts have held that where additional counts impose no additional liability, they are concurrent in nature, and should not be allowed.
Florida cases distinguish between acts committed within the scope and course of employment, and acts committed outside the scope of employment. (Delaurentos v. Peguero, 47 So.3 879, 882 (Fla. 3rd DCA 2010) (emphasis added). Where acts are committed within the course and scope of employment, the basis of employer liability is respondeat superior. Id. “As to this doctrine [respondeat superior] the negligence of the employer is immaterial since this Court is committed to the rule that if the employee is not liable, the employer is not liable.” Id. (citing Mallory v. O’Neil, 69 So.2d 313 (Fla. 1954); Garcia v. Duffy, 492 So.2d 435 (Fla. 2d DCA 1986)).
“Whereas here, a plaintiff alleges, and a defendant admits that the alleged torts took place during the course and scope of employment, employer liability can only be pursued on the basis of respondeat superior and not on the basis that the employer was negligent”. Id. (citing Mallory, 69 So.2d at 315).
This is because theories of negligent retention, negligent supervision and negligent training are reserved for acts of employees which are committed outside the course and scope of employment. Acts Retirement-Life Communities Inc. v. Estate of Zimmer, 206 So.3d 112, 116 (Fla. 4th DCA 2016). “By its very nature, an action for negligent retention involves acts that are not within the course and scope of employment.” Id. At 116-17. (citing City of Boyton Beach v. Weiss, 120 So.3d 606, 610 (Fla. 4th DCA 2013)). Further, “negligent supervision is simply not the appropriate claim to bring against an employer whose employees are acting within the scope of their duties.” Id. At 117. See also Watson v. City of Hialeah, 552 So.2d 1146, 1148 (Fla. 3rd DCA 1989); Garcia, 492 So.2d 435, 438 (Fla. DCA 1986) (“…negligent hiring or retention, allows for recovery against an employer for acts of an employee outside the scope and course of his employment”).
Furthermore, Florida law is well settled that “where these theories impose no additional liability in a motor vehicle accident case, a trial court should not allow them to be presented to the jury.” Clooney v. Geeting, 352 So. 2d 1216 (Fla. 2d DCA 1977). When presented with this scenario, the Clooney court denied Plaintiff’s ability to present concurrent theories of liability.
Here Counts III through V impose no additional liability on Anderson Mfg. Anderson has not denied ownership or permitted use of the truck driven by Geeting; therefore, it is liable for Geeting's negligence under the vicarious liability doctrine. Southern Cotton Oil Co. v. Anderson, 80 Fla. 441, 86 So. 629 (1920). Since the stricken counts impose no additional liability but merely allege a concurrent theory of recovery, the desirability of allowing these theories is outweighed by the prejudice to the defendants. See Armenta v. Churchill, supra.
Courts have held that the driving record of a party is typically inadmissible. Id. The Clooney court further stated that there would be no probative value of allowing these concurrent theories of liability, but it would be prejudicial to the Defendant, and as such, should be stricken. Also see Shaw v. Pizza Hut of America Inc. (2009 WL 1519881) which struck the Plaintiff’s negligent hiring claim, citing to Clooney.
While it is important to challenge these impermissible claims, it is equally important when settling these types of cases to secure a release for the employer, owner, driver, as well as any past/present employees of the employer, and any other party/entity that may be responsible. Some plaintiffs have chosen to sue the individual/s who hired, trained, and supervised the allegedly negligent driver/employee. While there is some case law that suggest that this claim is not permissible unless the plaintiff can show direct negligence on that employee’s part in causing the accident, this can be prevented by including all the appropriate parties on the release.